The sanctioning of infringements into intellectual properties is a question of severe relevance. Technical development, globalization and legal standpoints such as the Intellectual Property Rights Enforcement Directive has made the topic of this paper a much debated one.

The value of intellectual properties can be immense. In fact there are quite a few cases where the most valued assets within a company are the intellectual properties. Hence, there is a vast importance of efficient methods of sanctioning infringements. This paper takes aim at arguably the most important sanction of them all; claims for damages.

Whereas you’ll have a hard time finding well founded, thought through judgments from the Swedish courts in cases... (More)

Summary

The sanctioning of infringements into intellectual properties is a question of severe relevance. Technical development, globalization and legal standpoints such as the Intellectual Property Rights Enforcement Directive has made the topic of this paper a much debated one.

The value of intellectual properties can be immense. In fact there are quite a few cases where the most valued assets within a company are the intellectual properties. Hence, there is a vast importance of efficient methods of sanctioning infringements. This paper takes aim at arguably the most important sanction of them all; claims for damages.

Whereas you’ll have a hard time finding well founded, thought through judgments from the Swedish courts in cases regarding claims for damages related to intellectual properties, this lack of precedent means there’s still room for argumentation. It could be argued that judgments in these cases are handled with a certain routine. By separating a case, point out specifics, and why it shouldn’t be handled like the rest you could hopefully use this lack of clear rules to your advantage. The courts have to some extent been using 35:5 of the code of judicial procedure to estimate what they believe is reasonable compensation. This has been done in a modest fashion, the compensation paid out is generally considered to be in the lower regions as to what could be accepted.

This paper aims towards finding paths away from the careful way of estimating damages widely spread in the courts. The means to this end is in the hands of the parties. By narrowing the margins within which the courts estimates, what they think is reasonable compensation, much is gained. In providing the court with well grounded calculations, well founded arguments and so on, a party will in cases dramatically increase its chances of reaching a level of compensation which is more in tune with their desire.

A topic of certain interest has been the principle compensatio lucri cum damno. Roughly translated to “winnings in an infringement” it could be a vital factor when a party seeks to minimize the claims against it. It’s a well known fact that transforming damages into numbers is a tall order. This is of course equally true when a defendant tries to argue that an infringement has meant winnings for the rights-holder. A question raised in the paper is if the courts possibilities to estimate damages according to 35:5 can be of benefit for the defendant. Can a defendant, when proving that the infringement has meant not only losses, depend on aid from the courts in judging the value of these winnings? If so, it would mean that the possibilities for the defendant to achieve a more just level of compensation would increase significantly. (Less)

@misc{2334035,
abstract = {Summary
The sanctioning of infringements into intellectual properties is a question of severe relevance. Technical development, globalization and legal standpoints such as the Intellectual Property Rights Enforcement Directive has made the topic of this paper a much debated one.
The value of intellectual properties can be immense. In fact there are quite a few cases where the most valued assets within a company are the intellectual properties. Hence, there is a vast importance of efficient methods of sanctioning infringements. This paper takes aim at arguably the most important sanction of them all; claims for damages.
Whereas you’ll have a hard time finding well founded, thought through judgments from the Swedish courts in cases regarding claims for damages related to intellectual properties, this lack of precedent means there’s still room for argumentation. It could be argued that judgments in these cases are handled with a certain routine. By separating a case, point out specifics, and why it shouldn’t be handled like the rest you could hopefully use this lack of clear rules to your advantage. The courts have to some extent been using 35:5 of the code of judicial procedure to estimate what they believe is reasonable compensation. This has been done in a modest fashion, the compensation paid out is generally considered to be in the lower regions as to what could be accepted.
This paper aims towards finding paths away from the careful way of estimating damages widely spread in the courts. The means to this end is in the hands of the parties. By narrowing the margins within which the courts estimates, what they think is reasonable compensation, much is gained. In providing the court with well grounded calculations, well founded arguments and so on, a party will in cases dramatically increase its chances of reaching a level of compensation which is more in tune with their desire.
A topic of certain interest has been the principle compensatio lucri cum damno. Roughly translated to “winnings in an infringement” it could be a vital factor when a party seeks to minimize the claims against it. It’s a well known fact that transforming damages into numbers is a tall order. This is of course equally true when a defendant tries to argue that an infringement has meant winnings for the rights-holder. A question raised in the paper is if the courts possibilities to estimate damages according to 35:5 can be of benefit for the defendant. Can a defendant, when proving that the infringement has meant not only losses, depend on aid from the courts in judging the value of these winnings? If so, it would mean that the possibilities for the defendant to achieve a more just level of compensation would increase significantly.},
author = {Falk, Daniel},
keyword = {Private international law,immaterialrätt,immaterialrättsintrång,ersättning},
language = {swe},
note = {Student Paper},
title = {Ersättningssystemet vid intrång i immateriella rättigheter - i ett kommersiellt perspektiv},
year = {2011},
}